Citation Nr: 0828083
Decision Date: 08/19/08 Archive Date: 08/28/08
DOCKET NO. 05-13 941 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an initial disability rating in excess of 10
percent for service-connected migraine headaches.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. J. Turnipseed, Associate Counsel
INTRODUCTION
The veteran had active service from May 2002 to April 2004.
Her DD 214 also indicates 2 years of prior active service.
This matter comes before the Board of Veterans' Appeals
(Board) from a November 2004 rating decision of the above
Department of Veterans Affairs (VA) Regional Office (RO), in
Waco, Texas, which, in pertinent part, granted service
connection for migraine headaches and assigned a
noncompensable rating, effective April 2004.
The veteran appealed the November 2004 rating decision and,
in November 2007, the RO increased the veteran's disability
rating to 10 percent, effective April 2004. The veteran was
advised of the grant of the increased rating by letter and by
a Supplemental Statement of the Case (SSOC) in June 2005.
However, she did not withdraw her appeal. In accordance with
AB v. Brown, 6 Vet. App. 35 (1993), the veteran will
generally be presumed to be seeking the highest rating
available, and it follows that a partial grant of an
increased rating does not terminate an appeal. Thus, the
claim remains in appellate status.
In June 2007, the Board remanded this claim in order for
additional evidentiary development to be conducted. All
requested development has been completed and the claim is now
before the Board for appellate consideration.
FINDING OF FACT
Throughout the rating period on appeal, the competent
evidence of record demonstrates that the veteran's migraine
headaches are manifested by tension around the temple area,
blurred vision, dizziness, and light sensitivity, which occur
three to four times a week and have not been shown by either
objective evidence or credible lay evidence to be severe
enough to be prostrating any more than once every two months.
CONCLUSION OF LAW
The schedular criteria for an initial disability rating in
excess of 10 percent for service-connected migraine headaches
have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002);
38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8100 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced
VA's duty to notify and assist claimants in substantiating
their claims for VA benefits, as codified in pertinent part
at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007);
38 C.F.R. § 3.159, 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper
notice from VA must inform the claimant of any information
and evidence not of record (1) that is necessary to
substantiate the claim; (2) that VA will seek to provide; and
(3) that the claimant is expected to provide. 38 C.F.R. §
3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30,
2008). This notice must be provided prior to an initial
decision on a claim by the agency of original jurisdiction
(AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
However, if VCAA notice is provided after the initial
decision, such a timing error can be cured by subsequent
readjudication of the claim, as in a Statement of the Case
(SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20
Vet. App. 537, 543 (2006).
The VCAA notice requirements apply to all five elements of a
service connection claim: (1) veteran status; (2) existence
of disability; (3) connection between service and the
disability; (4) degree of disability; and (5) effective date
of benefits where a claim is granted. Dingess v. Nicholson,
19 Vet. App. 473, 484 (2006).
The U.S. Court of Appeals for the Federal Circuit recently
held that any error in a VCAA notice should be presumed
prejudicial. The claimant bears the burden of demonstrating
such error. VA then bears the burden of rebutting the
presumption, by showing that the essential fairness of the
adjudication has not been affected because, for example,
actual knowledge by the claimant cured the notice defect, a
reasonable person would have understood what was needed, or
the benefits sought cannot be granted as a matter of law.
Sanders v. Nicholson, 487 F.3d 881 (2007).
In this case, the VCAA duty to notify was satisfied by way of
a letter sent to the veteran in March 2004 that fully
addressed all required notice elements and was sent prior to
the initial AOJ decision in this matter. The letter informed
the veteran of what evidence was required to substantiate her
claim and of the veteran's and VA's respective duties for
obtaining evidence. Although no longer required, the veteran
was also asked to submit evidence and/or information in her
possession to the AOJ.
Finally, the Board notes the RO sent the veteran a letter in
August 2007 informing her of how disability ratings and
effective dates are assigned. See Dingess v. Nicholson,
supra. Thus, the Board concludes that all required notice
has been given to the veteran.
The Board also finds VA has satisfied its duty to assist the
veteran in the development of the claim. The RO has obtained
VA outpatient treatment records dated from September 2004 to
August 2005. The veteran was also afforded VA examinations
in September 2004 and August 2007. In addition, it appears
that all obtainable evidence identified by the veteran
relative to her claim has been obtained and associated with
the claims file, and that neither she nor her representative
has identified any other pertinent evidence, not already of
record, which would need to be obtained for a fair
disposition of this appeal. It is therefore the Board's
conclusion that no further notice or assistance to the
veteran is required to fulfill VA's duty to assist the
veteran in the development of the claim. Smith v. Gober,
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir.
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Accordingly, we find that VA has satisfied its duty to assist
the veteran in apprising her as to the evidence needed, and
in obtaining evidence pertinent to her claim under the VCAA.
Therefore, no useful purpose would be served in remanding
this matter for yet more development. Such a remand would
result in unnecessarily imposing additional burdens on VA,
with no additional benefit flowing to the veteran. The Court
of Appeals for Veterans Claims has held that such remands are
to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430
(1994).
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a). When there is
an approximate balance in the evidence regarding the merits
of an issue material to the determination of the matter, the
benefit of the doubt in resolving each such issue shall be
given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §
3.102.
II. Facts and Analysis
Disability ratings are based upon schedular requirements that
reflect the average impairment of earning capacity occasioned
by the state of a disorder. 38 U.S.C.A. § 1155 (West 2002).
Separate rating codes identify the various disabilities.
38 C.F.R. Part 4 (2007). In determining the level of
impairment, the disability must be considered in the context
of the entire recorded history, including service medical
records. 38 C.F.R. § 4.2. An evaluation of the level of
disability present must also include consideration of the
functional impairment of the veteran's ability to engage in
ordinary activities, including employment. 38 C.F.R. § 4.10.
Also, where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
In general, when an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994). However, when the current appeal arose from the
initially assigned rating, consideration must be given as to
whether staged ratings should be assigned to reflect
entitlement to a higher rating at any point during the
pendency of the claim. Fenderson v. West, 12 Vet. App. 119
(1999).
Throughout the rating period on appeal, the veteran is
assigned a 10 percent evaluation for migraine headaches
pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100.
Under that diagnostic code, DC 8100, a 10 percent rating is
warranted for migraine headaches with characteristic
prostrating attacks averaging one in two months over the last
several months. In order to be entitled to the next-higher
30 percent rating, the evidence must show migraine headaches
with characteristic prostrating attacks occurring on average
once a month over the last several months.
After carefully reviewing the evidence of record, the Board
finds the preponderance of the evidence is against the grant
of an initial disability rating in excess of 10 percent. A
review of the record shows that the veteran experiences
migraine headaches manifested by tension around the temple
area, blurred vision, dizziness, and sensitivity to light.
See September 2004 VA examination report. Additionally, at
the September 2004 VA examination the veteran reported that
her migraines require her to stops whatever she is doing and
rest. She reported that her last episode occurred in March
2004.
A VA clinical record dated in February 2005 reflects
complaints of a headache in the right temple area, with
accompanying symptoms of photophobia, sleepiness and blurred
vision. The symptoms had been intermittent for about a week.
The assessment was a migraine headache, and the veteran was
given medication. VA outpatient records in March, June, and
August 2005 show additional treatment for headaches. In June
2005, the veteran's headaches were described as "stable"
and "off and on."
The most recent medical evidence of record, the August 2007
VA examination report, reflects reports of headaches three to
four times a week, typically lasting a few hours at a time.
The veteran reported that the headaches are manifested by
nausea, sensitivity to light and sound, and blurred vision,
but she denied experiencing weakness or functional loss. The
veteran reported that the headaches are severe enough to be
prostrating once every few weeks. She also reported that she
works in human resources and has to go home with a headache
approximately that often, although the examiner noted the
claims file did not contain any documentation from the
veteran's employer. The veteran reported that sleep is her
primary alleviating factor, but she also takes over-the-
counter medications, which also help. After examining the
veteran, the August 2007 VA examiner rendered a diagnosis of
migraine headaches.
Based on the foregoing, the Board finds the veteran's
service-connected migraine headaches most nearly approximate
the level of disability contemplated by the 10 percent rating
under DC 8100. In so finding, the Board recognizes the
veteran's August 2007 report of headaches severe enough to be
prostrating every few weeks. The Board notes the veteran is
competent to testify about the severity of her symptoms, see
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007);
however, the credibility and probative value of any such
statements can be affected by numerous factors. See e.g.,
Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996). In determining how often the
veteran's prostrating migraine headaches occur, the Board
finds that the probative value of the veteran's statements is
lessened as it is not supported by the other evidence of
record.
Again, the medical evidence shows that, between February and
August 2005, the veteran complained of migraine headaches in
February, March, June, and August. The Board notes, however,
that the veteran did not report any increased or severe
symptoms associated with her headaches; nor did she indicate
that her headaches were severe enough to be considered
prostrating. In this context, the Board also finds
especially probative that, although the veteran recently
reported that she has to leave work with prostrating migraine
headaches every few weeks, she did not submit any evidence
from her employer documenting time lost from work due to her
service-connected disability. See August 2007 VA examination
report. In addition, the Board notes that, at the September
2004 VA examination, the veteran reported that her last
episode of migraine headaches was six months prior in March
2004. Additionally, the record contains treatment for
various other conditions, such as low back pain. Had her
migraines been more severe, it would stand to reason that
more frequent complaints or notations of headaches would
appear in the record.
Therefore, the Board finds that the most competent and
probative evidence of record fails to support assignment of
an evaluation in excess of 10 percent for the veteran's
service-connected migraine headaches throughout the rating
period on appeal. The Board finds that, although the veteran
has reported experiencing prostrating migraine headaches
every few weeks, the overall evidence of record does not show
that she tends to experience incapacitating or prostrating
attacks once a month, thereby warranting an increased
evaluation to 30 percent.
The Board has considered evaluation of the veteran's service-
connected disability under all other potentially appropriate
diagnostic codes; however, the Board finds no other relevant
code sections under which to evaluate the disability at
issue.
In summary, and for the reasons and bases set forth above,
the Board finds the preponderance of the evidence is against
the grant of an initial disability rating in excess of 10
percent for migraine headaches throughout the rating period
on appeal. As the preponderance of the evidence is against
the veteran's claim, the benefit-of-the-doubt doctrine is not
for application. 38 U.S.C.A. § 5107(b); Gilbert, supra.
ORDER
Entitlement to an initial disability rating higher than 10
percent for service-connected migraine headaches is denied.
____________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs